"In the event, however, of the prisoner being convicted, I will reserve the point for the consideration of the Judges."

Verdict-Not guilty.

Baines was for the prosecution.

FORCIBLE ENTRY.

York Sum. Assizes, 1838.

Before con

viction it is

Rex v. Harland and Others.

The defendants were indicted under the statute

in the discre- for a forcible entry into a house near Studley, in

tion of the

Court to

award restitution. though a true bill has been

the west riding county of York*. The grand jury having found a true bill,

*Forcible entry is an offence against the public peace, and is committed by violently taking or keeping possession of lands and tenements, with menaces, force, and arms, and without the authority of law.

This was formerly allowable to every person desseised, unless his entry was taken away by his own neglect, or other circumstances. But this being found very prejudicial to the public peace, it was thought necessary by several statutes to restrain all persons from the use of such violent methods, even of doing themselves justice, and much more if they have no justice in their cause; so that the entry now allowed by law is a peaceable one; that forbidden, is such as is carried on and maintained with force, with violence, and with unusual weapons.-4 Bl. Com.

Warren obtained a rule, calling upon the de- found by the fendants to shew cause why a writ should not for a forcible

grand jury.

entry.

By the 5 R. 2, c. 8, s. 1. The king enjoineth," that none 5 R. 2, c. 8. from henceforth make entry into any lands and tenements, but in case where entry is given by law, and in such case not with strong hand, nor with multitude of people, but only in lawful, peaceable, and easy manner."-(En lisible, aisee, et peasible maneré. Rot. P.).

By 8 Hen. 6, c. 9, it is enacted, that "Where any doth 8 H. 6, c. 9. make any forcible entry on lands, tenements, or other possessions, or them hold forcibly, after complaint thereof, made within the same county where such entry is made, to the justices of peace, or to one of them, by the party grieved, the justice or justices shall cause the 15 R. 2, c. 2, to be duly executed at the costs of the party grieved."

By sect. 3, "The justice or justices are to make inquiry Sect. 3. of the people in some good town next the tenements, &c., as well of those who make forcible entry as those who hold

by force and are to restore possession."

By sect. 4, "The justices are to issue a precept to the

sheriff to return a jury."

The 31 Eliz. c. 11, provides, that "where a party is in- 31 E c. 11. dicted of forcible entry, or holding with force, and hath had

three years' quiet possession, and his estate be not ended,

restitution not to go."

The 21 Jac. 1, c. 15, extends the 31 Eliz. c. 11, to tenants 21 Jac. 1, c. 15. for term of years, copyholders, &c.

The gist of the offence is the breach of the peace, for which, both at common law and by statute, a punishment is provided.

The statutes give besides remedies to the party grieved by restitution.

The force and violence must be such as constitute a pub

R. v. Wilson

vi et armis.

issue to the sheriff, commanding him to restore possession.

lic breach of the peace. A mere trespass, which is the subject of a civil action, and where the words “vi et armis,” are introduced as matter of form, cannot be converted into an indictable offence.

Lawrence, J., said," that no particular technical words were necessary in an indictment for a forcible entry; but that it should appear by the indictment that such force and violence had been used as constitute a public breach of the peace."

In R. v. Wilson, it was contended, that manu forti in addiMunu forti & tion to vi et armis charged only a private trespass; and R. v. Bathurst, being referred to as an authority the other way, it was contended, that the decision in that case proceeded, not upon the introduction of those words, but upon the fact of the entry being of a dwelling-house, and that consequently the force was apparent on the face of the indictment. But the Court were unanimous that manu forti and vi et armis • did impute to the defendants a degree of violence sufficient to support the indictment.

R. v. Bathurst.

R. v. Bake.

In R. v. Bathurst, Ryder, C. J., observed, "that the words manu forti, are understood to import something criminal in itself; something more than is meant by the words, ' vi et armis:"" and he referred to an ancient case, in which Roll, C. J., said, that "those words should have been used to distinguish this case from an ordinary trespass."

In R. v. Bake, 3 Burr. 1731, the Court quashed the indictment, because it contained no other charge of violence than the common technical term of vi et armis. Wilmot, J., observing, "that it ought to appear on the face of the indictment to be an indictable offence-such an actual force as implies a breach of the peace. Here, indeed, are sixteen defendants, but the number of defendants makes no differ

The rule was moved for upon an affidavit which stated that Newton, the prosecutor, was lawfully possessed and in the occupation of the premises in question, and that in his temporary absence the defendants entered and expelled his wife. That, on the 4th July last, Newton and his wife went to the house and demanded possession; but that Harland's wife, who was there, refused to give it up. The affidavit did not contain any averment of interest at the time of the demand; but merely alleged, that the prosecutor was lawfully possessed at the time of the entry.

There was also an affidavit, setting forth the finding of a true bill by the grand jury for a forcible entry.

Tomlinson now shewed cause.

He referred to the affidavit of W. Harland, one of the defendants, which stated a demise of certain rooms for six months to the end of March, 1837; and that there was no other agreement or continuation of the tenancy. That possession was

ence in itself; no riot or unlawful assembly, or any thing of that kind is charged."

An indictment on the statutes ought to state the nature of the interest, because there must be restitution.-Per Wilmot, J., in R. v. Bake and others, (sup.).

In R. v. Bathurst, (1 Sayer's Rep. 225), the first count of the indictment was held bad because of the omission.

demanded and refused. That a peaceable entry was made by the outer door to distrain for arrears of rent under the stat. of Anne, after the tenancy had determined. That the present prosecutor had brought an action against deponent for an assault, and that deponent had justified; but that the prosecutor had not brought any action of trespass. It further alleged, that the prosecutor had no interest in the apartments, nor had he had since the 1st of March, 1837; and that, although two assizes had intervened, he had never till now taken any steps in reference to the matter for which the present indictment was preferred.

There were two other affidavits, setting forth, that a regular notice was given to the prosecutor to quit the premises, and negativing the force alleged in his affidavit.

Tomlinson then contended, that the common law chiefly punished the force. That the statutes gave restitution, (provided the title was continuing at the time), as matter of right after conviction, and sometimes ex favore after bill and before conviction. That, in order to obtain restitution, the indictment must state the title, it being only in the case of a continuing title that the Court can award it. That, in this respect, the practice of the superior courts was uniform. (Com. Dig. Forcible Entry, D. 7; Entry for Forfeiture, 2